Disability, Education, Repair and Health: How Mexico's Copyright Law Hurts Self-Determination in the Internet Age

Mexico's new copyright law was rushed through Congress without adequate debate or consultation, and that's a problem, because the law -- a wholesale copy of the US copyright system -- creates unique risks to the human rights of the Mexican people, and the commercial fortunes of Mexican businesses and workers.

The Mexican law contains three troubling provisions:

I. Copyright filters: these automated censorship systems remove content from the Internet without human review and are a form of "prior restraint" ("prior censorship" in the Mexican legal parlance), which is illegal under Article 13 of the American Convention on Human Rights, which Mexico's Supreme Court has affirmed is part of Mexican free speech law (Mexico has an outstanding set of constitutional protections for free expression).

II. Technical Protection Measures: "TPMs" (including "digital rights management" or "DRM") are the digital locks that manufacturers use to constrain how owners of their products may use them, and to create legal barriers to competing products and embarrassing disclosures of security defects in their products. As with the US copyright system, Mexico's system does not create reliable exemptions for lawful conduct.

III. Notice and Takedown: A system allowing anyone purporting to be a copyright holder to have material swiftly removed from the Internet, without any judicial oversight or even presentation of evidence. The new Mexican law can easily be abused by criminals and corrupt officials who can use copyright to force online service providers to turn over the sensitive personal details of their critics, simply by pretending to be the victims of copyright infringement.

This system has grave implications for Mexicans' human rights, beyond free expression and cybersecurity.

Implicated in this new system are Mexicans' rights to education, repair, and adaptation for persons with disability.

The new law does contain language that seems to protect these activities, but that language is deceptive, as the law demands that Mexicans satisfy unattainable conditions and subject themselves to vague promises, with dire consequences for getting it wrong. There are four ways in which these exemptions are unfit for purpose:

1. Sole Purpose. The exemptions specify that one must act for the "sole purpose" of the exempted activity — a security researcher must be investigating a device for the sole purpose of fixing its defects, but arguably not to advance the state of security research in general, or to protect the privacy and autonomy of users of a computer, system, or network in ways that conflict with what the manufacturer would view as the security of the device.
2. Noncommercial. The exemptions also frequently cover only "noncommercial" actors, implying that you can only modify a system if you can do so yourself, or if you can find someone else to do it for free. If you are blind and want to convert an ebook so that you can read it with your screenreader, you have to write the code yourself or find a volunteer who'll do it for you — you can't pay someone else to do the work.
3. Good faith. The exemptions frequently require that anyone who uses them must be acting in "good faith," an imprecise term that can be a matter of opinion when corporate interests conflict with those of researchers. If a judge doesn't belief you were acting in good faith, you could face both fines and criminal sanctions.
4. No tools. Even if you are confident that you are acting for the sole purpose of exercising an exemption and doing so non commercially and in good faith, you are still stuck. Because while the statute recognizes in general terms that there could be a process to create further exemptions for people who bypass digital locks, it does not provide a similar process for those who make tools for those purposes.

The defects in the Mexican law are lar